The Illusory Wall: Wizards of the Coast and the Dangers of Ambiguous Licensing
The Dungeons & Dragons (“D&D”) Players Handbook for the game’s Third Edition, first published in 2000 by Wizards of the Coast (“Wizards,” parent company Hasbro), contains a chapter dedicated to spells that characters may learn and cast within the game. One such spell for characters of the wizard class is “Illusory Wall,” the effect of which is to create “the illusion of a wall” that “appears absolutely real when viewed,” but can be physically passed through without much difficulty.
Published alongside D&D’s Third Edition was Wizards’ Open Game License (“OGL”) version 1.0(a), a short document purporting to grant third-party designers the right to create their own original “Derivative Materials” based on D&D’s “game mechanic[s]… methods, procedures, processes and routines.” The OGL 1.0(a), which provided its license on the sole condition that licensees provide proper attribution to Wizards, was viewed by many as a forward-thinking boon to creators, giving them the confidence to spawn countless spinoffs all while raising the cultural capital of both Wizards and D&D.
When Wizards recently announced big changes to the OGL set to roll out in January 2023, followed by a leaked version of a draft that included more restrictive terms, a requirement to pay Wizards royalties, and an attempt to revoke or “deauthorize” the prior version of the OGL, the outcry from fans and creators alike was swift and significant. Larger publishers like Paizo announced plans to move away from the OGL entirely, and so many protesting players cancelled their D&D Beyond accounts that it caused Wizards’ site to crash. Misinformation about future D&D offerings also circulated, creating more trouble for Wizards than what their announcement alone would have caused.
Wizards eventually responded to the backlash on January 13, stating that their intention was to prevent the use of D&D IP in “hateful and discriminatory products” and “web3, blockchain games, and NFTs,” and to prevent “major corporations” from using their IP commercially. On January 19, Wizards publicly released the first draft of the “OGL 2.0,” open to community feedback and with many of the more decried terms of the previously leaked version removed. And then on January 27, in light of the overwhelming community backlash, Wizards completely walked-back their plans for updating the OGL at all.
For many in the D&D community, the damage may already be done. And while there is much that can be said about how the OGL changes were rolled out, the real upshot is that this controversy has led to the discovery of the real truth:
The OGL was nothing more than an Illusory Wall conjured by Wizards.
The Limitations of Copyright Protection
In the United States, copyright law protects creative expression and applies to a wide range of such expression, from literary and visual works to theater, music, and more. Copyright provides a “bundle of rights” exclusive to the author, including the right to create derivative works based on the original. The author can grant these rights to other parties, either through assignment or license, in as broad or as narrow a scope as they wish.
While creative expression is protected by copyright law, the underlying ideas that are expressed in that work are not. Courts examining this “idea-expression dichotomy” have repeatedly found that while the specific expressions used in a game – artwork, music, dialogue, animations, etc. – are copyrightable, the underlying rules to the gameplay are not (see Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1988) and Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394 (D. N.J. 2012)).
Related to this idea-expression dichotomy is the merger doctrine, which holds that certain ideas can only be expressed in a limited number of ways, causing the expression to merge with the underlying and unprotected idea. The merger doctrine is particularly applicable to game rules, mechanics and “abstract rules and play ideas,” given their functional nature. (Allen v. Academic Games League of America, Inc., 89 F.3d 614, 617 (9th Cir. 1996)). Part of the policy rationale behind limiting copyright protection for game mechanics is that doing so would tread into the territory of Patent law, which does protect processes and procedures, but only if they are novel and nonobvious. See Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1012 (7th Cir. 2005). For example, Wizards’ has a patent for “trading card game method of play” for the collectible card game Magic: the Gathering, but no such patent exists for D&D.
What the OGL Does and Doesn’t Do
As mentioned above, the OGL grants a copyright license to “Open Game Content,” the “game mechanic[s] … methods, procedures, processes and routines” of D&D’s gameplay. It also includes to the right to copy and distribute D&D’s System Reference Document (“SRD”), a collection of explanatory texts for those rules.
But this is the first illusion of the OGL. “Open Game Content” covers only material that is largely or entirely unprotectable under US copyright law, because as explained above, game mechanics, methods, procedures, processes, and routines are the sorts of “abstract rules and play ideas” generally understood to be unprotectable by copyright. While the OGL does allow copying of the SRD text, much of that text cannot be easily separated from the rules it is explaining, and therefore would have only thin copyright protection at best under the merger doctrine.
And that’s not all. The OGL specifically excludes the game’s “Product Identity,” which is defined to include trademarks and trade dress of the D&D product as well as “creatures, characters, stories, storylines, plots,” and many other elements of the D&D game and settings. This means that cosplayers, artists, and others who want to use D&D’s characters or lore can’t actually rely on the OGL at all. Instead, they need to abide by Wizards’ separate Fan Content Policy.
The OGL 1.0(a) granted ambiguous license terms to its end-users that, in effect, didn’t really do much of anything at all. And while this fostered a thriving fan creator community, it also directly contributed to the current mess in which Wizards finds itself. For decades, the D&D fan community relied (perhaps inadvisably) on the OGL to make D&D-related content, and some built their very livelihoods around that content creation. While the original objectives of the OGL seem noble, and taking at face value Wizards’ statements about their goals in preventing abusive or discriminatory uses of their IP through the OGL 2.0, this serves as an example of why rights holders and their attorneys must be extremely careful about granting licenses that seem permissive but are actually vague or even unenforceable. Once that illusion falls, it can be hard to rebuild consumer trust.
What This Means for Players, Creators, and Competitors
While the final version of the updated OGL is not yet released, it’s worth asking what all the controversy around the license will mean going forward for D&D’s players, creators, and competitors in the tabletop marketplace. With the “illusion” of the OGL at least partially dispelled, will content creators continue to rely on it?
One entity that serves as a useful case study is Critical Role. Critical Role began in October 2015 as a web series featuring a “group of nerdy-ass voice actors playing Dungeons & Dragons,” with veteran voice actor Matthew Mercer serving as the Dungeon Master. Since then, Critical Role has exploded into a multi-platform media empire with hundreds of videos sporting hundreds of millions of views across Twitch and YouTube, a charitable foundation, a board and tabletop game publishing company (Darrington Press), a hit animated series currently in its second season on Amazon and with a second series just announced, and even potential future expansions into video games.
Critical Role’s streaming legality never actually hinged on the OGL. The OGL would not have provided any protection to Critical Role’s early streams, because the actors initially used D&D characters and lore in their streams (i.e., aspects of Wizards’ “Product Identity”). Rather, Critical Role’s early streams technically operated in a grey area of what is sometimes referred to as “permitted use,” where a derivative work is technically infringing, but the copyright holder declines to take legal action (usually because doing so would only hurt the copyright holder’s brand). Perhaps unsurprisingly, as Critical Role grew in popularity and commercial success, it started to deliberately remove Wizards’ owned IP from their offerings.
As explained above, Critical Role and other creators need not blindly accept the terms of Wizards’ existing OGL; Wizards does not have the right to control or prevent others from building on D&D’s unprotectable rules and game mechanics. If for example Critical Role wanted to create its own original tabletop RPG using the core game mechanics of D&D like Paizo did with its game Pathfinder, they could do so with or without Wizards’ involvement.
Wizards may have wanted to initially control the proliferation of derivative games by drafting the OGL. However, the reality is that this controversy likely will spawn even more D&D competitors in the future. Like D&D co-creator Gary Gygax once quipped, “the secret we should never let the gamemasters know is that they don’t need any rules.”